Yang v. The Dominion of Canada General Insurance Company, 2025 CanLII 105095
Licence Appeal Tribunal File Number: 23-008664/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Chi Sheng Yang
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Rakesh Sharma, Counsel
For the Respondent: Christopher McCormack, Counsel
HEARD: By way of written submissions
OVERVIEW
1Chi Sheng Yang, the applicant, was involved in an automobile accident on January 13, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, The Dominion of Canada General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Has the applicant sustained a catastrophic impairment as defined by the Schedule?
ii. Is the applicant entitled to the outstanding balance of $7,344.81 for a CAT determination assessment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated June 3, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
The applicant has not demonstrated that he sustained a catastrophic impairment as defined by the Schedule.
The applicant is not entitled to the outstanding balance of $7,344.81 for a CAT determination assessment.
The applicant is not entitled to interest or an award.
PROCEDURAL ISSUES
4The applicant seeks to exclude the respondent’s surveillance reports dated February 21, 2023, and August 8, 2024, on the basis that they are unauthorized under section 45 of the Schedule.
5The respondent submits that surveillance is a recognized and permissible evidentiary tool in both Licence Appeal Tribunal (“LAT”) and court proceedings. It argues that section 45 of the Schedule does not prohibit the use of surveillance, nor does it require specific authorization for its use. The respondent further contends that the applicant’s position is unsupported by case law, standard practices, or the Schedule itself.
6In reply, the applicant argues that surveillance in the context of Accident Benefits claims is unauthorized and inadmissible, as it lacks a statutory foundation and is inherently intrusive. He submits that section 45(3)(b), which requires the insurer to provide “medical and any other reasons” for its decision, should be interpreted narrowly to refer only to procedural deficiencies in forms such as the OCF-19. The applicant distinguishes surveillance practices in bodily injury claims under common law from those under the Schedule, which he characterizes as consumer-protection legislation. He also notes that section 33 of the Schedule already provides mechanisms for insurers to obtain information, and therefore surveillance should not be considered a valid adjudicative tool.
7Section 45 of the Schedule sets out the process for an insured person to apply for a determination of catastrophic impairment. It outlines the requirements for assessments, timelines for insurer responses, and entitlements following a catastrophic designation. It does not address or regulate the use of surveillance evidence.
8Surveillance evidence is generally admissible in LAT proceedings when it is relevant, reliable, and probative. The Tribunal has consistently accepted surveillance as a legitimate tool to assess an applicant’s functional abilities and credibility, provided it meets evidentiary standards. In this case, the applicant did not argue that the specific surveillance evidence fails to meet these standards. Instead, the applicant’s objection was categorical, asserting that surveillance evidence is inherently prejudicial or contrary to the Schedule. Notably, the applicant has not directed me to any binding case law or authority holding that surveillance evidence is unauthorized under Section 45.
9Consequently, I find that the surveillance reports in this matter are relevant and will admit them into evidence. Their weight will be determined in the context of the full evidentiary record.
ANALYSIS
Does the applicant have a catastrophic impairment?
10The issue before the Tribunal is whether the applicant has proven, on a balance of probabilities, that the accident of January 13, 2020, caused an impairment that meets the definition of a catastrophic impairment under the Schedule.
11I find that the applicant has not sustained a catastrophic impairment as defined under Criteria 6, 7, or 8 of the Schedule.
12The applicant submitted an OCF-19 dated September 22, 2022, completed by Dr. Joseph Chu, a specialist in internal medicine and neurology, indicating the applicant suffered a catastrophic impairment under Criteria 6, 7, and 8. Supporting reports were provided by Dr. Chu, Dr. Sedigheh Naisi (psychologist), and Mr. Raymond Wong (occupational therapist), including a revised psychological report from Dr. Naisi dated April 12, 2024. Despite these submissions, the respondent issued a letter dated July 7, 2023, concluding that the applicant does not meet the criteria for catastrophic impairment under any of the three claimed categories.
13The respondent rejected the applicant’s claim for catastrophic impairment in letters dated February 10 and July 7, 2023, relying on assessments conducted by qualified physicians in accordance with the American Medical Association’s (“AMA”) Guides and the Schedule. The respondent argued that its assessments found no catastrophic impairment and challenged the reliability of the applicant’s reports, citing vague conclusions, non-compliance with the Guides, and excessive reliance on self-reported symptoms. The respondent also stressed that the applicant’s employment and surveillance records indicate he returned to full-time work and daily activities after the accident, which conflicts with the claimed level of impairment.
Criterion 6 – Physical Impairment
14I find that the applicant does not meet the threshold for catastrophic impairment under Criterion 6 of the Schedule.
15Under Criterion 6, an impairment is considered catastrophic if the insured person sustains a physical impairment or a combination of physical impairments that, when assessed using the AMA Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in a Whole Person Impairment (WPI) rating of 55% or more.
16The applicant concedes in his submissions that he does not meet the required WPI rating of 55% under Criterion 6. He has not led any evidence to support a higher WPI rating, nor has he submitted any assessor reports that contradict the respondent’s evidence.
17The respondent relies on the catastrophic impairment determination completed by Dr. Howard Platnick, General Physician, dated July 5, 2023, which was conducted as a paper review. Dr. Platnick assessed the applicant’s physical impairments and assigned a total WPI of 40%, broken down as follows: 24% abdomen, 5% neck, 5% back, 3% medical, and 3% skin.
18As the total physical impairment rating falls below the required 55% threshold, I find that the applicant does not meet the criteria for catastrophic impairment under Criterion 6.
Criterion 7 – Mental/Behavioural and Physical Impairment
19I find that the applicant does not meet the threshold for catastrophic impairment under Criterion 7 of the Schedule.
20Subject to subsections (2) and (5) a mental or behavioural impairment, excluding traumatic brain injury, determined in accordance with the rating methodology in Chapter 14, Section 14.6 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008, that, when the impairment score is combined with a physical impairment described in paragraph 6 in accordance with the combining requirements set out in the Combined Values Table of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, results in 55 percent or more impairment of the whole person.
21The applicant relies on psychological assessments completed by Dr. Sedigheh Naisi (psychologist). In her January 3, 2023, report, Dr. Naisi diagnosed the applicant with major depressive disorder, somatic symptom disorder, and specific phobia, assigning a psychological WPI of 20%. In her updated report dated April 12, 2024, she increased the psychological WPI to 30%. When combined with the respondent’s physical impairment rating of 40%, the applicant’s total WPI would be 58%, exceeding the 55% threshold.
22The respondent relies on its Insurer’s Examinations (IEs) dated July 5, 2023, including reports from Dr. Zeeshan Waseem (physiatrist), Dr. Kehinde Aladetoyinbo (psychiatrist), and Ms. Leslie Hisey (occupational therapist). Dr. Aladetoyinbo diagnosed unspecified depressive disorder and phobia, assigning a psychological WPI of 15%. Dr. Platnick, in his review, combined the physical and psychological ratings to reach a total WPI of 45%, below the catastrophic threshold.
23Dr. Naisi’s assessments describe symptoms including sadness, fatigue, sleep disturbance, irritability, and cognitive difficulties. These findings are supported by the administration of standardized psychological tests, including the PAI, PCL-5, M-FAST, P3, BDI-II, and BAI. Based on these results, she maintains her diagnoses of major depressive disorder (severe), somatic symptom disorder, and specific phobia in both her 2023 and 2024 reports.
24Mr. Raymond Wong, an occupational therapist, conducted assessments on August 14, 2022, and January 30, 2023, which included a clinical interview, functional testing, and cognitive and psychosocial evaluations. His reports reflect observations of the applicant’s reduced mobility, pain, low mood, diminished interest, and difficulty initiating and sustaining activities. Mr. Wong concluded that these limitations significantly interfere with the applicant’s ability to engage in daily roles and routines. While he opined that the applicant is catastrophically impaired, he did not independently calculate a WPI rating. Instead, he deferred interpretation of his findings to the assessing psychologists, who would apply the AMA Guides to determine the WPI. His conclusion was based on his own observations and review of assessments by Dr. Chu and Dr. Naisi.
25The respondent’s assessors dispute the applicant’s claim of catastrophic impairment under Criterion 7. Dr. Platnick applied the AMA Guides (4th Edition) and calculated a combined whole person impairment (WPI) of 45%, based on ratings of 24% for abdominal injuries, 15% for mental and behavioural impairment, 5% each for neck and back pain, and 3% each for medication and skin conditions. He used the Combining Tables on page 322 of the Guides to reach this total and concluded that the applicant does not meet the 55% WPI threshold required under Criterion 7.
26Ms. Hisey, an occupational therapist, conducted a functional and cognitive assessment. She observed that the applicant demonstrated reduced attention, amotivation, and fatigue during testing, with some difficulty in completing inventories and tasks. While she noted variability in his functional capacity and signs of emotional and cognitive challenges, she deferred conclusions regarding mental health impairment to qualified professionals.
27Dr. Waseem identified discrepancies between the applicant’s reported symptoms and his observed behaviour during the assessment and maintained his previously assigned impairment ratings totalling 34% WPI. Dr. Aladetoyinbo, a psychologist, applied the AMA Guides (6th Edition) and assigned a median psychological WPI of 15%, based on his evaluation of the applicant’s mental health status.
28I prefer the evidence presented by the respondent with respect to Criterion 7. I assign limited weight to the applicant's assessments, as they rely heavily on self-reported symptoms and lack sufficient objective clinical corroboration. While Dr. Naisi administered standardized psychological tests such as the PAI, PCL-5, M-FAST, P3, BDI-II, and BAI, her reports do not clearly outline how the resulting scores translate into impairment ratings under the AMA Guides (6th Edition). Specifically, her WPI ratings are not broken down into component impairments, nor do they reference class ratings or the Combined Values Chart required for proper application of the Guides. This limits the transparency and reliability of her conclusions.
29Mr. Wong’s assessments included a clinical interview, functional testing, and cognitive and psychosocial evaluations. He observed limitations in the applicant’s mobility, mood, and ability to initiate and sustain daily activities. However, his conclusions were primarily based on the applicant’s subjective reports and secondary reviews of other clinicians’ findings. Mr. Wong did not independently calculate a WPI nor apply the AMA Guides methodology. He explicitly deferred interpretation of his observations to the psychologists responsible for impairment ratings. As such, his opinion does not assist in establishing the applicant’s WPI under Criterion 7.
30In contrast, the respondent’s assessments were conducted by a multidisciplinary team, including a psychiatrist, physiatrist, general physician, and occupational therapist, who applied the AMA Guides and supported their conclusions with objective evidence. Their reports incorporated clinical observations, standardized testing, and corroborating documentation such as surveillance footage and employment records. Notably, Records of Employment from 2022 to 2024 and Dr. Aladetoyinbo’s July 5, 2023, report confirm that the applicant resumed full-time work as a machine operator at BNF Tour and Machine, performing physically demanding tasks, including heavy lifting. This documented work activity directly contradicts the level of impairment described in the applicant’s reports and undermines the reliability of his self-reported limitations.
31The applicant reported significant limitations in his ability to perform daily activities and maintain employment. He described persistent pain, fatigue, low mood, and cognitive difficulties that interfered with his ability to initiate and follow through with tasks. Specifically, he stated that he no longer goes shopping, does not participate in housekeeping tasks, showers infrequently, and is unable to use his left arm effectively. He also reported difficulty concentrating, recalling information, and completing written tasks due to mental fatigue and emotional distress. These self-reported impairments were cited as barriers to engaging in meaningful roles and routines.
32However, these claims are directly contradicted by objective evidence. Records of Employment from 2022 to 2024, along with surveillance footage, confirm that the applicant resumed full-time work as a machine operator at BNF Tour and Machine. This position involves physically demanding tasks, including heavy lifting and sustained manual activity. The applicant’s ability to consistently perform these duties and manage daily activities independently undermines the severity of impairment described in his assessments and raises concerns about the accuracy and reliability of his self-reported limitations.
33For these reasons, I find that the applicant has not met the criteria for catastrophic impairment under Criterion 7 of the Schedule.
Criterion 8- Marked or Extreme Mental Impairments
34I find that the applicant does not meet the threshold for catastrophic impairment under Criterion 8 of the Schedule.
35Under Criterion 8, an impairment is considered catastrophic if it results in a Class 4 (marked impairment) in three or more areas of function, or a Class 5 (extreme impairment) in one or more areas of function, as outlined in Chapter 14 of the 4th Edition of the AMA Guides to the Evaluation of Permanent Impairment. These impairments must be due to a mental or behavioural disorder and must preclude proper functioning. The levels of impairment are explained in the Table below:
Area or Aspect of Functioning
Class 1: No Impairment
Class 2: Mild Impairment
Class 3: Moderate Impairment
Class 4: Marked Impairment
Class 5: Extreme Impairment
Activities of Daily Living
No impairment is noted
Impairment levels are compatible with most useful functioning
Impairment levels are compatible with some, but not all useful functioning
Impairment levels significantly impede useful functioning
Impairment levels preclude useful functioning
Social Functioning
Concentration, Persistence and Pace
Adaptation (Deterioration in a work-life setting)
36The applicant relies on psychological assessments completed by Dr. Naisi, dated January 3, 2023, and April 12, 2024, in support of his claim under Criterion 8. In both reports, Dr. Naisi identified Class 4 (marked impairments) in several domains, including social functioning, concentration, persistence and pace, adaptation, and, later, in activities of daily living. She observed that the applicant’s mood appeared dysphoric, though he did not exhibit a formal thought disorder, and he denied experiencing secondary symptomatology.
37However, I assign limited weight to Dr. Naisi’s assessments. As previously noted under Criterion 7, her evaluations rely heavily on the applicant’s self-reported symptoms and lack objective clinical corroboration. Notably, her April 2024 report upgraded the impairment rating for activities of daily living from Class 3 to Class 4, without providing any explanation or identifying new clinical findings. This unexplained change raises concerns about the consistency and methodological rigour of her evaluation.
38Additionally, Dr. Naisi acknowledged that specific indicators in the applicant’s responses fell outside the normal range, suggesting potential defensiveness and exaggeration. She noted that this response style could lead to an inaccurate impression of the applicant’s functioning. These concerns, combined with the lack of transparency in her impairment ratings, diminish the probative value of her evidence under Criterion 8.
39The respondent relies on the psychiatric assessment of Dr. Aladetoyinbo, dated May 17, 2023, who found the applicant to be calm, well-groomed, with appropriate affect, working full-time, and independent in self-care. Dr. Aladetoyinbo assessed only Class 3 (moderate impairments) in all areas of functioning and concluded that the applicant did not meet the catastrophic impairment threshold under Criterion 8. The respondent argues that these findings, supported by surveillance evidence, contradict the presence of marked impairments.
40Dr. Aladetoyinbo disagreed with Dr. Naisi’s conclusions, noting that her observations did not appear to account for the applicant’s demonstrated functional abilities. He found no evidence of pervasive difficulties in goal setting, problem-solving, or planning, and concluded that the applicant did not meet the threshold for catastrophic impairment under Criterion 8.
41Dr. Howard Platnick, in his report dated July 5, 2023, similarly concluded that the applicant did not exhibit Class 4 impairments in three or more domains, nor a Class 5 impairment in any domain, and therefore did not satisfy Criterion 8.
42The evidence provided does not establish the presence of three or more Class 4 (marked) impairments, nor a Class 5 (extreme) impairment in any area, as required under Criterion 8 of the Schedule. Although the applicant’s psychological assessments by Dr. Naisi indicate Class 4 impairments in multiple areas, these findings lack sufficient support from the AMA Guides (4th Edition) and are not consistent with clinical reasoning.
43Firstly, I do not accept the applicant’s evidence of marked impairments under Criterion 8, as it is inconsistent with his demonstrated functional abilities. In his psychological assessments, the applicant reported significant limitations in activities of daily living, including difficulty initiating and completing tasks, reduced motivation, and impaired concentration. However, surveillance footage and employment records from 2022 to 2024 show that he has maintained full-time employment as a machine operator, a role that involves physically demanding tasks, sustained attention, and regular attendance. He also manages his own self-care, drives, shops, carries bags, and jogs without observable signs of distress. These activities directly contradict the level of impairment described in Dr. Naisi’s reports, particularly in the domains of activities of daily living and concentration, persistence, and pace. Given this inconsistency, I assign limited weight to the applicant’s evidence and prefer the respondent’s assessments, which are more consistent with the applicant’s actual functioning.
44Secondly, I prefer the evidence of Dr. Aladetoyinbo with respect to Criterion 8. His psychiatric assessment is more consistent with the applicant’s demonstrated functioning and is supported by objective evidence, including surveillance footage and employment records. Dr. Aladetoyinbo observed that the applicant was calm, well-groomed, and displayed appropriate affect during the assessment. He noted that the applicant was working full-time and remained independent in self-care. Based on these observations, he assessed only Class 3 (moderate) impairments across all domains. His conclusions are detailed, clinically reasoned, and aligned with the applicant’s actual behaviour and capabilities. In contrast, Dr. Naisi’s reports rely heavily on the applicant’s self-reporting and lack clear clinical justification for the impairment ratings assigned. Given these factors, I assign greater weight to Dr. Aladetoyinbo’s assessment.
45Considering these factors, I place greater weight on the respondent’s assessments. They were conducted by a multidisciplinary team and supported by objective evidence, including clinical observations, standardized testing, and corroborating documentation. In contrast, the applicant’s assessments, while completed by credentialed professionals, relied heavily on self-reported symptoms and lacked sufficient clinical detail to support the impairment ratings. For example, Dr. Naisi’s April 2024 report increased the rating for activities of daily living from Class 3 to Class 4 without any explanation or change in clinical findings. This unexplained adjustment raises concerns about the consistency and reliability of her evaluation. Given these deficiencies, I find that the applicant’s evidence does not establish a catastrophic impairment under Criterion 8.
46I therefore find that the applicant does not meet the criteria for catastrophic impairment under Criterion 8.
Is the applicant entitled to the outstanding balance of the treatment plan for catastrophic assessments?
47I find that the applicant has not demonstrated entitlement to partial payment for the denied portion of the catastrophic impairment assessment plan.
48To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
49The treatment and assessment plan dated June 3, 2022, signed by Mr. Raymond Wong, Occupational Therapist, proposes a total cost of $14,750.81. The stated goal is to support a CAT determination, and the plan includes seven CAT assessments, completion of OCF-18 and OCF-19 forms, translation services, transportation, and travel time.
50On June 6, 2022, the respondent partially approved the plan, agreeing to fund $7,406.00 (including HST). The respondent agreed to fund:
i. Neurology Assessment for $2,000.00;
ii. Psychological Assessment for $2,000.00;
iii. Overall Assessment Summary, Analysis, Final Rating for $2,000.00;
iv. Documentation (Completion of OCF-18) for $200.00;
v. Documentation (Completion of OCF-19) for $200.00; and
vi. Interpretation Services for $200.00.
51However, it denied funding for the following components:
i. $3,000 for clinical file reviews by Dr. Chu and Dr. Naisi, arguing these were already included in the $2,000 cap per assessment under Section 25(5)(a) of the Schedule;
ii. $3,000 for the in-home OT assessment and file review, pending further justification;
iii. $512.81 for transportation, citing the 50 km round-trip deductible under Section 3(1) of the Schedule.
52The respondent denied the remaining $7,344.81 of the proposed plan.
Clinical File Review – Neurological and Psychological Assessments
53Section 25(5)(a) of the Schedule sets a maximum payable amount of $2,000, plus applicable HST, for any single assessment, including associated reports.
54The applicant submits that the clinical file reviews conducted by Dr. Chu, Mr. Wong, and Dr. Naisi involved detailed examinations of medical records and prior assessments and were essential to the neurological and psychological evaluations. It is argued that these reviews should be considered separate from the assessments themselves and not subject to the $2,000 cap.
55The respondent denied payment for the file review charges, relying on prior LAT decisions that interpret file reviews as part of the overall assessment cost and therefore subject to the cap under section 25(5)(a).
56The Cost of Assessments and Examinations Guideline No. AU0127INF clarifies that the terms “assessment” and “examination” are used interchangeably under the Schedule. It defines an assessment or examination as a clinical evaluation or appraisal of a claimant’s health status. In some cases, such as under section 44 of the Schedule, an assessment may consist solely of a file review without the claimant’s physical attendance.
57In this case, the disputed charges, identified in lines 4 (Dr. Chu), 6 (Mr. Wong), and 7 (Dr. Naisi) of the treatment plan, relate to file reviews that were conducted in support of broader assessments.
58I find that the file reviews in question form part of the overall assessment process and are therefore subject to the $2,000 cap under section 25(5)(a). The reviews were not independent services but were conducted to inform the assessors’ clinical opinions. While the applicant argues that these reviews were distinct, the Schedule and applicable guidelines treat file reviews as integral components of an assessment.
In-Home OT Assessment and File Review
59The applicant seeks payment for an in-home occupational therapy (OT) assessment and an associated clinical file review, asserting that both services were necessary to evaluate functional limitations in the home environment as part of the catastrophic impairment determination.
60The respondent partially approved the plan and issued payment of $2,000 plus applicable tax for the in-home OT assessment. This is confirmed by correspondence dated August 15, 2024.
61The remaining $1,000, shown in line 6 of the treatment plan, relates to the clinical file review conducted by Mr. Wong. The respondent did not pay this portion, relying on its position that file reviews are included within the $2,000 cap for a single assessment under section 25(5)(a) of the Schedule.
62In reply submissions, the applicant confirmed that the treatment plan was partially approved. However, the dispute remains regarding the unpaid $1,000 for the file review. As outlined above, I have found that file reviews are part of the overall assessment process and subject to the $2,000 cap. Accordingly, the applicant is not entitled to further payment for this item.
Transportation Expenses
63Section 25(4) of the Schedule provides that “the insurer shall pay reasonable expenses incurred by or on behalf of an insured person for authorized transportation expenses incurred in transporting the insured person to and from an assessment or examination referred to in subsection […].”
64The applicant seeks reimbursement of $512.81 for transportation and travel time expenses incurred in attending assessments. He also submits that an adverse inference should be drawn against the respondent for failing to cite section 25(4) in its denial.
65The respondent denies the claim, relying on the definition of “authorized transportation expenses” under section 3(1) of the Schedule, which includes a 50-kilometre round-trip deductible. The respondent submits that, unless the applicant is catastrophically impaired, which I have found he is not, transportation expenses are only payable to the extent they exceed the first 50 kilometres of each round trip.
66I agree that section 25(4) governs the entitlement to transportation expenses, and that section 3(1) defines the scope of “authorized transportation expenses,” including the 50-kilometre deductible. The respondent’s reliance on this provision is appropriate in the context of its denial.
67The applicant bears the burden of proving entitlement to the claimed amount. While he asserts that the total expenses incurred were $512.81, he has not provided sufficient evidence, such as mileage logs, maps, or receipts, to demonstrate that the travel distances for each assessment exceeded the 50-kilometre threshold. Without this documentation, I am unable to determine which portion, if any, of the claimed amount is reimbursable.
68Accordingly, I find that the applicant has not met the burden of proving entitlement to reimbursement of the claimed transportation expenses. The respondent’s denial was based on a correct interpretation of the Schedule, and its failure to cite section 25(4) in the initial denial does not materially affect the outcome or warrant an adverse inference.
Interest
69Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I find that the applicant is not entitled to the disputed treatment plans, interest is not payable.
Award
70The applicant seeks an award under section 10 of Regulation 664. Under Section 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer has unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [ See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration)]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
71The applicant argues that the respondent’s partial denial of $7,344.81 was unreasonable, arbitrary, and negligent. He requests an award equal to 50% of the denied amount, along with interest at 2% per month, compounded monthly, from the date the benefits became payable.
72The respondent contends that the applicant’s claim for an award should be dismissed due to failure to comply with the Case Conference Order, specifically the omission of particulars regarding the award claim. The respondent argues that such non-compliance prevents the applicant from proceeding with the claim. Additionally, the respondent asserts that its conduct was reasonable and supported by the Schedule, relevant case law, and medical documentation. It denies acting in a manner that was excessive or improper, unyielding.
73I find that the applicant has not met the burden of proving that the respondent acted unreasonably in its handling of the claim. The applicant’s primary argument concerns the partial denial of costs related to the catastrophic impairment assessment. However, as outlined above, I found that the applicant was not entitled to those disputed benefits. Accordingly, the respondent’s decision to deny them does not amount to unreasonable withholding. The respondent conducted multidisciplinary assessments, issued timely determinations, and relied on surveillance and employment evidence to support its position. These actions reflect a reasonable and procedurally sound approach to claim adjudication and do not rise to the level of conduct contemplated by section 10 of Regulation 664, such as being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
74Accordingly, the applicant’s request for an award is denied.
ORDER
75For the above reasons, it is ordered that:
i. The applicant has not demonstrated that he sustained a catastrophic impairment as defined by the Schedule.
ii. The applicant is not entitled to the outstanding balance of $7,344.81 for a CAT determination assessment.
iii. The applicant is not entitled to interest or an award.
Released: October 16, 2025
Harouna Saley Sidibé
Adjudicator